ALJDEC - Licensing

2022A-10821-NPC-ROC · Registrar of Contractors · 2023-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

R & H Plumbing, Inc.,

COMPLAINANT,

v.

Independent Contractors Network, Inc.

License No. ROC 290206,

RESPONDENT.

No. 2022A-10821-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2023

APPEARANCES: Jennifer Nelson and Thomas Rice appeared on behalf of Complainant. Paul Martin and Travis Neff appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Independent Contractors Network, Inc. (“Respondent”) is the holder of License No. 290206, issued by the Arizona Registrar of Contractors (“Registrar”).

On or about December 2, 2022, R & H Plumbing, Inc. (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $2,900.00 for plumbing work at two jobsites.

On December 27, 2022, the Registrar issued a Citation charging Respondent with the alleged violation of A.R.S. § 32-1154(A)(10). Respondent timely filed an Answer to the Complaint.

A Notice of Hearing was issued on January 19, 2023, advising the parties that a hearing would convene before the Office of Administrative Hearings on February 23, 2023. On the date and time set for hearing, Jennifer Nelson, Complainant’s secretary, and Thomas Rice, Complainant’s owner, appeared on behalf of Complainant. Paul Martin, Respondent’s estimator, and Travis Neff, Respondent’s Vice-president, appeared on behalf of Respondent.

The two invoices at issue for hearing are invoice number 10183 in the amount of $1,800.00, and invoice number 10194 in the amount of $1,100.00. During the course of the hearing, Respondent agreed that it owes Complainant the full amount of invoice number 10183 in the amount of $1,800.00, and indicated that it will pay for such.

Invoice number 10194 in the amount of $1,100.00, represents work performed by Complainant on May 4, 2022, and May 6, 2022. The work performed by Complainant on May 4, 2022, included extending the water lines for a kitchen sink, installing supply valves, supply lines, a kitchen faucet and RO faucet, as well as installing a bar sink with supply lines and drain, installing a laundry sink with angle stops, drain, and supply line, and installing a hallway bathroom faucet, supply lines and drain. The work performed by Complainant on May 6, 2022, included installing the RO system, installing island vent piping and drainage, and installing a garbage disposal with a drain and trap.

Ms. Nelson testified that all work was completed by Complainant and that Complainant did not receive payment for the work, nor did Respondent indicate at any time to Complainant that there were any issues/deficiencies with Complainant’s work.

Mr. Martin testified that on May 9, 2022, after Complainant completed its work on May 6, 2022, the homeowner called Respondent to advise that the base of a kitchen cabinet had water damage. It was ascertained that Complainant placed a large rock with electrical tape over it in the disposal as a temporary measure until the dishwasher was installed. The homeowner used the water and the water poured into the cabinet resulting in damage to the cabinet. Respondent incurred costs for the water remediation and to repair the cabinet, totaling $831.36.

Ms. Nelson testified that Complainant advised the homeowner not to use the water in the kitchen sink and instead, should use the bar sink.

Mr. Neff testified that there should have been no water running to the kitchen sink at the time that Complainant left the jobsite due to the risk of damage.

CONCLUSIONS OF LAW

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The evidence established that Complainant performed the work it was contracted to perform, however, the evidence further established that Respondent incurred costs that should reasonably be back charged to Complainant. The undisputed evidence established that Respondent failed to pay Complainant for invoice number 10183 in the amount of $1,800.00. The credible evidence further established that Respondent incurred costs of $831.36 for damage caused by Complainant leaving a rock in the disposal and having running water to the kitchen sink with that condition present. Therefore, this amount should be deducted from the amounts charged in invoice number 10194 in the amount of $1,100.00, leaving a remaining balance of $268.64. The Administrative Law Judge concludes that Respondent has failed to pay Complainant the total sum of $2,068.64, representing the $1,800.00 from invoice number 10183 and the balance of $268.64 from invoice number 10194.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed and that it had not received sufficient monies from the client/owner of the project.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $2,068.64 for services or materials rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License No. 290206 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted documents that establish that it has paid Complainant $2,068.64 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $2,068.64 in certified funds, the Registrar may close the Complaint in Case No. 2022-10821.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, March 10, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

R & H Plumbing, Inc.

[email redacted]

Independent Contractors Network, Inc.

[email redacted]

By: OAH Staff